21 May 2012

You'd think it would be simple. You send in some personal details. The government looks them over. Then gives you a yea or a nay. But life always seems to be a bit more complicated than it should be.

The immigration systems of the countries of the world were all established with essentially the same aim: permanently let into your country those whom you believe will make good lasting contributions to your society, temporarily admit those who are unlikely to do any harm (perhaps giving some of them study or work permits), and keep out those whom you deem undesirable.

The challenge for immigrating permanently to Canada or even for coming temporarily as a visitor, student or worker is that instead of one simple form on which you write some personal details, and check off a couple of boxes for what kind of status you are seeking in Canada, there are reams of forms with obscure numbers, names which aren't self-explanatory, and a host of choices that must be made for the best application type and route. In this post, I'm going to demystify the process for you by distilling it all down to basics.

1. The three main factors that keep people out of Canada relate to: (a) criminal history, (b) health condition, and (c) financial capacity. If you haven't committed criminal offences in the past, are healthy, and have money, Canada will probably let you inside its borders - at least on a temporary basis.

If you do have a shortcoming on one or more of these grounds, you need to carefully study the Citizenship and Immigration Canada website and perhaps speak with an immigration lawyer to determine whether you will be excluded from Canada, and if there are any ways to get around that exclusion.

2. The three main ways to temporarily enter Canada: as a (a) visitor, (b) student, or (c) temporary worker.

Citizens of a small number of preferred countries don't need visas to enter Canada as visitors, and can just show up at the border - passport in hand - and usually get a stamp permitting a stay of six months. It's then possible to apply to extend that stay for additional time. You'll still be subject to those three factors which exclude people from Canada, but they won't be as strictly applied if you're only a visitor.

Everyone else in the world will need to apply for a visitor visa in advance. From some places, these visas are very fast and easy to get. From other places, they are almost impossible to obtain. The difference largely rests on how many people want them, how much staff is devoted to issuing them, and Canada's assessment of how likely you are to return home at the end of your visitor period.

You'll need to be able to qualify as a visitor in order to additionally get a study or work permit. Study permits aren't too difficult to obtain if you are able to prove admission to a legitimate education institution in Canada (you need to carefully check out in advance the status of the school and program you will be attending - there is lots of misinformation out there) and the financial means to support yourself while studying in Canada.

Work permits are more difficult to obtain because of the way employers who wish to employ foreign workers must demonstrate that they can't find a Canadian for the job. Clients frequently come to me who are legitimately in Canada on visitor visas, want to work legally here, but have become very frustrated when employers who are favourably disposed towards them can't obtain foreign worker authorizations because they don't understand the system for obtaining what's known as a favourable Labour Market Opinion from Human Resources and Skills Development Canada.

3. There are two main ways to permanently enter Canada: (a) through an independent/economic application or (b) through a family class application.

Although there are various schemes going by different names where independent/economic applications are concerned, and increasingly the provinces have their own schemes (though provincial program applications are still largely processed through the federal government) the fundamental distinction in permanent resident routes is betweenthese two classes.

The family class is mostly for spouses and dependent children. There are a few exception that could extend sponsorship to other relatives, but generally this class has been getting more and more narrow - for instance, Canada will no longer process application to sponsor parents and grandparents.

The independent/economic classes generally require that you have work skills that are in demand in Canada, or money to invest in starting a business in Canada. There are lots of options here, and even if you don't qualify when you first examine the possibility of coming to Canada independently, it's worth checking again in a year or two to see if there might be new programs that you could more easily fit into.

4. As a Canadian immigration lawyer, the best tip I can offer to anyone reading this posting who is interested in spending an extended time in Canada (or who wishes to enable a relative to do so), is don't become overly fixated on obtaining permanent residency at the cost of ignoring much quicker and easier temporary residency routes.

For example, sometime foreign student or temporary foreign worker programs in Canada can offer an easier path to permanent residency. You'll get to Canada much more quickly than waiting years for a permanent residency application to be processed, you'll be able to learn whether Canada really suits you before you making a permanent commitment to it, and your permanent residence application may receive preferential treatment after you've worked or studied for a number of years in Canada (depending on the type of work and level of completed studies).

The same goes for bringing parents or grandparents to Canada. If they're already in their 70's, obtaining a ten year temporary residence supervisa for them, where they can continuously remain in Canada for up to two years a a time, might have a much better practical outcome than waiting years for a permanent residence sponsorship application to be processed.

15 May 2012

Most Canadians have heard of legal aid. Most don't know what it covers, or who can benefit from it, unless they've been put in the position of really needing a lawyer but had difficulty affording one. Official "full service" legal aid where your own personal lawyer takes on your case from start to finish is unfortunately only available to Canadians with the lowest of low incomes who are facing very serious legal consequences. However, there are alternatives for the many Canadians who make too much to qualify for legal aid, or don't have a problem that is considered serious enough to merit a lawyer being assigned.

While legal aid rules vary slightly by province or territory in Canada, I don't believe the income cut-offs and services covered vary all that much from place to place. However, in this post it's the Ontario situation that I'll directly talk about. And regardless of what you read in this post, since the rules can be a bit technical you should always check with an official legal aid office before deciding you won't qualify. Most notably, some local community legal clinics devoted to subjects like landlord and tenant law, and some duty counsel offices located in court houses which provide summary legal advice on criminal or family matters (but not full representation for all aspects of a case) don't have the same stringent income cut-offs.

I've had clients making $50,000 per year quite reasonably ask me if they might qualify for legal aid, since paying thousands of dollar in legal costs would be difficult; the answer is no, even with a large family to support. I've had clients making minimum wage even more reasonably presume that they would qualify for legal aid, since paying 25% to 100% of their annual pre-tax income on legal fees is just not possible; again the answer is no, unless they have some dependents. Lastly, I've had clients who are in receipt of social assistance ask if they would qualify for legal aid after being charged with a relatively serious first criminal offence like an impaired driving charge; yet again the answer is no, however here the "no" is not because of their financial position, but because it is unlikely they'll be sentenced to jail.

As a single Ontario resident, you need to make less than $10,800 per year gross (before taxes or other deductions) to qualify. Working full time at a minimum wage job will earn you almost double that amount! Thus even many part-time jobs will out-earn the cut-off. Really, if you're single and aren't on social assistance or disability, it's unlikely you'll qualify. And even with dependents to support (a spouse and/or children), you can't be making much above minimum wage if you hope to qualify. On top of it all, most legal aid funds go to criminal cases, so if you have a family or other civil law case you may be out of luck - regardless of how little you make. There is some funding for family, civil and administrative cases - like where child custody or refugee status is in issue - but not much.

This post isn't about demanding increased legal aid funding (although I certainly think that would be a good idea), as even if funding was to double the vast majority of Canadians still wouldn't be covered. England and Wales have the world's best funded legal aid system at an unsustainable cost of two billion pounds per year, with assistance extending its reach into the lower middle class, but still only about 29% of residents qualify; coverage there could shrink dramatically as budget cuts sweep the public sector. Rather, this post is about facing realities of who is covered, what is covered, and what are your options if you aren't covered by legal aid in Canada.

So if you're not covered, what are you to do?

1. Consider Retaining a Lawyer if You Can Stay Out of Court, or Minimize Your Time in Court.

As you probably know, most lawyers charge by the hour. The charges tend to be proportionate to how long it took them to become lawyers (for me it was nine years of post-secondary training), the geographic area they practice in, and to a lesser degree their area of specialization. In the professional fees spectrum, they charge less than doctors who usually spend longer than lawyers in school, but more than accountants or engineers who may have spent less time in school. In Canada we don't see our doctor bills, so lawyers tend to be perceived as the top billers, but really the medical professions earn (and deserve) more.

One hour of a lawyer's time could be the best few hundred dollars you'll ever spend, since the advice you obtain through that hour could completely put your mind to rest over all your legal worries. However, one thousand hours of a lawyer's time slogging away at an apocalyptic court case involving motions, trials, appeals and retrials is unaffordable for most of us, lawyers included! It's usually not the lawyer advice or document drafting that gets expensive, it's the going to court because of the way court sucks in the time of a lawyer, somewhat like the all-consuming nature of the event horizon of a black hole. But you might be able to limit total lawyer court time, depending on the litigation strategy you adopt.

Even if you are already in court representing yourself, consider retaining a lawyer to negotiate a settlement for you - be it a criminal plea or dropping of charges, or a civil agreement to pay some nominal damages or share child custody. Settle, and fees could be very affordable.

Yes, I know it seems unfair, and I'm definitely not saying you should agree to some kind of ridiculous settlement - it's your lawyer's job to avoid that and get you a good deal - but courts were not created as fora devoted to proving points, they are there so that the inhabitants of our society can achieve some modicum of justice they can live with - maybe not be happy with, but at least be kinda content with - and move on with their lives.

2. Seek Out Free or Law Cost Non-Legal Aid Representation.

If you live in a city with a law school, the school might have a law student clinic - I used to run the McGill Legal Information Clinic - where students might be willing to represent you in court on minor matters (their ability to do so will depend on the local bar rules and mandate of the clinic), or at least point you in the right direction of how to proceed.

There are some pro bono lawyer organizations that can occasionally provide legal representation without charge, but do understand that many lawyers don't take pro bono cases, and even those who do might limit themselves to one pro bono case at a time, so finding pro bono representation can be extremely difficult unless you have some kind of particularly novel, newsworthy, and meritorious test case.

There are also sometimes community legal clinics which are funded by legal aid to provide specialized types of legal services to particular client groups (like the elderly, Aboriginals, the disabled, or those from particular cultural communities), but which apply more flexible financial means tests. Although you'll need to live in an area where one of these clinics exist - usually a big city.

3. Do-It-Yourself.

DIY law may be easier said than done, but there are now lots of online resources to help you. There are two fundamental requirements to succeed here: (a) you must have a reasonable grasp of the language you are proceeding in (in Canada, English or French); (b) you must be wiling to use the Internet to get help. If you're reading this post online, you probably meet both the requirements.

In the old, dark days of legal research - circa the 1980's - you could spend days, even weeks, lost in the dusty stacks of a cavernous law library looking for the holy grail of legal knowledge that is applicable to your case, only to find once you locate the blank space on the shelf in which it used to be lodged that it had been sent out for rebinding, and might be returned in another 3 to 6 months - if you were lucky.

The full searchable text of all laws are online ( for example, federal laws can be found at: http://laws-lois.justice.gc.ca/eng/ ) The full searchable text of all recent cases are online (www.canlii.ca). Law books (written mostly by academics, and occasionally by me) aren't online, but can be purchased online (sometimes at great cost, or occasionally - as in the case of my own books which I am shamelessly promoting, see the right hand side bar of this blog - at reasonable cost).

On top of all that, there are online community organizations devoted to explaining the law to the public. In Ontario, the most notable site is yourlegalrights.ca, which cover a lot of areas of the law in lots of detail, and sometimes in more languages than just English and French.

So to take the DIY example of conducting your own litigation, you will usually find all the court forms you need online on the court's web site, you can research the applicable legislation by doing keyword searches through the applicable law, and likewise pull relevant caselaw by searching through the over one million (!) cases on the Canadian Legal Information Institute's website.